Law vs. Art Criticism: Judging Appropriation Art

The recent Cariou v Prince District Court decision has brought to the fore, once and for all, the elephant in the art world and courtroom, Fair Use, which had, until now, managed to avoid close scrutiny in the popular press.

Why? Because perhaps until now, copyright seemed like a silly game played and lost at little expense to the greater good of the art world.

But Cariou v Prince, with it’s harsh consequences to Richard Prince and his Canal Zone works has made us very aware that a whole body of work can be wiped out by a court’s decision that a claim to fair use is invalid, begging the question, can a judge make these decisions about art?

Notwithstanding that this was a summary judgment and is in the process of being appealed, there are some who worry that if Richard Prince loses the appeal, appropriation art in general will suffer a chilling effect that will lead artists in doubt to abandon projects — in effect, stifling creative speech.

Also, there has been much hand-wringing amongst appropriation aficionados that had similar decisions been made in past seminal works of art — currently studied, worshipped, sought after and canonized — would have been erased: just think what works hereafter will be squelched in the name of copyright!

In Defense of Copyright

First, let’s get something straight. Copyright law does not exist only to protect the pecuniary interests of the holder. At first British common law, the Statue of Anne was intended to encourage creativity by discouraging the piracy and inaccurate copying of books and their content. Not only did the statute give monetary and distributive rights to authors but it ensured that the fruits of their labor would not be compromised in reputation or in content: i.e., authors could feel free to produce works without fear that either their profits, or the quality of their craft, would be usurped.

The United States Copyright Act is modeled upon British law. The copyright holder is said to hold a “limited monopoly” on her works: a monopoly that is limited in terms of time, and, by court acknowledged exceptions of “fair use” “such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research.”

When we consider the freedoms afforded by a secure knowledge that what we put out into the world is, at least temporarily, in most important respects, under our control, we see why copyright is actually an asset to artistic endeavor.

Another frequent objection to copyright law is that it conflicts with our right to freedom of speech. In the United States, it is acknowledged that there is a tension between Congress’ right, as stated in Article 1, Section 8 of the Constitution, known as the copyright clause “to secure to authors exclusive rights for a limited time,” and the First Amendment, which guarantees freedom of speech.

The doctrine of fair use mitigates that tension, by allowing exceptions to the limited monopoly held by a copyright owner. Further, the concept of “transformative use” is useful in giving artists the opportunity clarify their claim of fair use against infringement proceedings against them.

A good court decision will keep these tensions in mind, attempting always to maximize potential creativity.

The Subjective Nature of Fair Use Evaluations

The determining factors to be weighed and evaluated in determining fair use are:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work; and
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and the effect of the use upon the potential market for or value of the copyrighted work.

One of the most common objections I’ve heard to the Batts decision in Cariou v Prince is that it will have a “chilling effect” on artists who make appropriation art. And, indeed, the Batts decision has had that effect. Finding in favor of Patrick Cariou, Judge Deborah A. Batts ordered that Richard Prince and Gagosian gallery:

“ … are hereby enjoined and restrained permanently from infringing the copyright in the Photographs, or any other of Plaintiff’s works … and from participating or assisting in or authorizing such conduct in any way.”

That “in any way” is a crucial phrase. It entails, according to the court that all “infringing copies,” including those used to produce Canal Zone — and, most crucially, all unsold paintings and books, be impounded and turned over to Cariou for “destruction, or other disposition.”

As if that were not “chilling” enough the court also ordered that Gagosian, has to “notify in writing any current or future owners of the Paintings … that the Paintings infringe the copyright in the Photographs, that the Paintings were not lawfully made under the Copyright Act of 1976, and that the Paintings cannot lawfully be displayed under 17 U.S.C. § 109(c).”

Placing the thermostat well below freezing is the fact that this not necessarily the full heft of the judgement against Prince. Damages and “reasonable attorneys’ fees” will be rewarded at a further meeting tomorrow, May 6.

Quite understandably denizens of the white cube blinked in disbelief when the news of Justice Batts’ decision hit them: exactly who was Deborah A. Batts to reek such havoc? Who was Dan Brooks to contend that Richard Prince’s work was not “transformative”?

Cariou’s Lawyer Speaks

Two weeks ago, Hyperallergic attended a lecture at the Volunteer Lawyers for the Arts (VLA), where Dan Brooks, lawyer for Patrick Cariou spoke about the case and took questions from a lively audience.

Asked directly about the feared “chilling effect” Brooks agreed with Sergio Sarmiento, who on top of authoring the extensive Clancco Art and Law blog, is also assistant director of VLA. Sarmiento suggested that appropriation art can only be made better in a world where, as he put it, “You have to have a critical — a rigorous reason,” to use another artist’s work. If appropriation art cannot stand up to the Judge Batts’ of this world, Sergio tells us, “Maybe this art movement no longer has viability as a creative approach.”

It is interesting, and quite amusing to note that art pontiffs are being asked to re-evaluate just what it is they are so afraid of losing? Are we really going to sweat the loss of derivative artworks which refuse to address their own borrowed content in terms of meaning or purpose?

I can hear the objections already, breaking out the great book of art canons, Joe Artspeak insists that it goes deeper than that. The validity of Warhol and Rosenquist and even Picasso can be called into question if collage is shamed in the courts. What would have happened if Judge Batts had been calling the shots “back then?”

Art histrionics, aside, folks: she wasn’t. And these decisions are made on a case by case basis in order to benefit from precedent, and also to add new points of view and new testimony. Law is alive that way.

Dan Brooks, who has had an earful of objections, says, “Who’s a judge to say, ‘Well, that’s not transformative’?” And he answers by explaining that the defendant, the artist himself, has the opportunity of an ‘Affirmative Defense’ when addressing the use and purpose of a borrowed image. “The artist himself has to show that his work is transformative. Who else is going to testify about that?”

Art experts will insist that this is not enough: as one audience member suggested, “Prince, by his own traditional practice [the artist has made a name out of being inscrutable] could not comment on what he’s doing —but critics have.”

Perhaps it is time for the courts to invite expert testimony to “the purpose and character of the use” of appropriated images. Such a suggestion could add a very entertaining element to court proceedings where every sort of egghead will be called upon to bore the plaintiff’s legal team into submission. And surely allowing that lawyers and judges are not necessarily art experts, it would help to enlighten their decisions. Such testimony would also go a long way toward assuaging the fears of the art elite that delicate aesthetic nuances are not being addressed.

The second most frequently repeated objection to the Batts decision is actually about all copyright infringement cases in the arts, and not just this particular case. It can be summed up by Patrick Cariou’s comments in ArtInfo:

In my opinion copyright law is badly done, because there is one word in that law that makes everyone really confused, and that word is ‘transformative.’ It took me over a year to understand what that meant, it was explained to me and I didn’t get it, and I don’t think I’m but I didn’t get it. It has to be transformed for a purpose, that’s what it is, and that’s what the judge is saying.

That’s a pretty clear understanding of a rather vague, and variably applied concept. Fair use has always been problematic, and the addition of the doctrine of transformative use has not cleared things up. It may, in fact, have made it yet murkier. It is one thing for a judge to apply the four cases which can weigh for or against fair use, but quite another to determine if a work is “transformative,” a designation which, if granted, weighs very heavily in favor of a fair use claim.

The problem with transformative use is that it is vague.

Originally the concept was only hinted at in the 1841 case, Folsom v. Marsh, wherein Justice Story ruled that

… if [someone] thus cites the most important parts of the work, with a view, not to criticize, but to supersede the use of the original work, and substitute the review for it, such a use will be deemed in law a piracy.

After that ruling, the degree to which a new work’s intention or purpose was to “supersede the use of the original work” became a gauge in determining fair use. But the term “transformative use” was never stated outright until the Supreme court case, Campbell v. Acuff-Rose Music, which focused:

… on whether the new work merely supersedes the objects of the original creation, or whether and to what extent it is controversially “transformative,” altering the original with new expression, meaning, or message. The more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use.

Since Campbell v Acuff-Rose, most courts place heavy emphasis on transformative use and it has become crucial to a good fair use defense. But it’s interpretation in recent years has proved problematic.

Jeff Koons, for instance, has lost three copyright infringement cases, he has won one.

In Rogers v Koons, String of Puppies was not considered to be transformative because Koons stated outright that he had his assistants copy the photograph exactly: the court ruled that in order to be transformative, a work has to be at least in part about the conjured work, or else there was no reason to refer to that particular piece.

But in Blanch v Koons, Jeff Koons testified that he scanned photographer Andrea Blanch’s photo “Silk Sandals by Gucci” removed the background, added color, and rotated the image which he then incorporated into his collage work, “Niagara.” He won his claim to fair use of Blanch’s image.

What made the difference?

Well, for one thing, in the Blanch v Koons case, Jeff Koons did not make his own deposition statement. As Dan Brooks takes some pleasure in pointing out, Koon’s lawyer wrote up a statement for Koons and had him sign it. The statement, Dan says, “deftly navigated around the problems with Rodgers and other previous cases. Koons’s statement said he was addressing: ‘the typicality of the ad’ and attempted to comment on ‘slick fashion photography.’

In other words, Koons’ statement addressed a transformative intent: to speak to the influences that this genre of photography has on us. Oddly Koons did not address the specific photograph that he used, and a district court and a circuit court both decided in his favor anyway.

I suspect that Prince’s legal team saw the Koons decision as a breakthrough that would allow his claims to fair use to rest on process and not message at all. They apparently felt confident that a new precedent had been set, one which took process into account. That Prince’s detailed testimony speaking to his creative activities was dismissed because he did not speak to the meaning of Cariou’s works came to many in the art world as a surprise. Sure, Prince made no claim to parody, or to reference, but he did describe the full extent of his own artistic tinkering, why was this not good enough for Judge Batts?

The answer seems obvious to me:

1) Blanche v Koons is a flawed decision and Batts was being more true to precedent.
2) Blanche v Koons may have accepted that Koons addressed the fashion photography genre, but Prince, stupidly, testified to addressing only his own storyboarding purposes, and refusing to comment on Cariou’s work, or on the genre.

Wondering about the upcoming appeal, we asked Dan Brooks about the nature of a summary judgement, which can be made only when there is no disputation of the facts involved.

Brooks informed us that most copyright infringement cases defer to a “tradition of settling” (another reason why the art world has been blinkered by this case). “Most of these artists are represented by Gagosian,” he quipped, implying that they can afford to settle. “But when they do not settle, both sides tend to move for a summary judgement.”

But if the facts are not in dispute, what can possibly be pursued in an appeal to a summary judgement?

“The appeal can only argue that the judge got the law wrong,” replied the very literal-minded Brooks.

Meantime, Prince’s newly appointed some heavy new attorneys. The swank team of Boies, Schiller & Flexner LLP. Labeled “a litigation powerhouse” by the Wall Street Journal, the firm has already filed an appeal. A court date has not been set.

Resources:

• An interactive timeline of US Copyright Law

• Mail
• Bluesky
• Facebook
• Threads
• LinkedIn
• WhatsApp